Jyotirmay Bhattacharya, J. - (1.) SERVICE of the petitioner, who was Clerk-cum-Checking Inspector attached to Bus Terminus, was terminated by an order being No.616 dated 11th March, 2010 passed by the Director of Transport, after conducting a departmental enquiry against him under the Standing Orders applicable to the Industrial Establishment of Transport Department framed under the Industrial Employment (Standing Orders) Act, 1946. The instant writ petition is directed against the said order of termination of his service.
(2.) AT the very outset, a preliminary objection regarding maintainability of this writ petition was raised by Mr.Ashish Kumar Ray, learned Senior Counsel appearing for the respondents. According to him, the petitioner is a motor transport worker as per the provision of the Motor Transport Workers Act, 1961. He contended that the Payment of Wages Act, 1936 is applicable to Motor Transport Service engaged in carrying passengers or goods or both by road for hire or reward. He thus contended that when the service of such a workman is terminated by his employer by following the Standing Orders applicable to the industrial establishment of Transport Department framed under the Industrial Employment (Standing Orders) Act, 1946, any disputes or differences between that workman and his employer connected with or arising out of such dismissal and/or termination of his service shall be deemed to be an industrial dispute under section 2A of the Industrial Dispute Act, 1947 and as such if the dismissed employee feels aggrieved by the order of the termination of his service, he is required to seek remedies under the Industrial Disputes Act, 1947 before the Industrial Tribunal. He further contended that since the remedy of the writ petitioner lies under the Industrial Disputes Act before the Tribunal set up under the said Act, the instant writ petitioner is not maintainable. According to him, no remedy concerning an industrial dispute can be sought for by any dismissed workman in any other forum and not even before this Honble Court under Article 226 of the Constitution of India as the Industrial Dispute Act, 1947 creates an absolute bar upon any other forum to entertain any industrial dispute for its trial. This Court cannot reject such contention of Mr.Ray, learned Senior Counsel altogether as the aforesaid contention of Mr.Ray, no doubt, has substance. Keeping in mind the aforesaid submission of Mr.Ray, let me now consider the fate of the writ petition in the facts of the instant case. The petitioner is the Clerk-cum-Checking Inspector. He defaulted in depositing the daily collection with the office either on the date of its collection or on the next following day, on many occasions. On many occasions he deposited the daily collection in cash collection counter after two to five days after the collection. This is the most vital charge against him. He did not take permission from his employer before purchasing a Light Motor Vehicle. He also did not take permission for purchasing another light motor vehicle in the name of his wife. He allegedly misused the official telephone. There are other charges against him. Under such circumstances, a charge sheet was issued to him containing the aforesaid memorandum of charges. Accordingly, he was called upon to submit his reply to the said charge sheet. The petitioner submitted his reply to the said charge sheet. An Enquiry Officer was appointed for holding an enquiry with regard to the charges levelled against him in the said charge sheet. Both the employer as well as the charged employee adduced evidence in support of their respective contention.
(3.) AT this stage, this Court does not want to make any effort to appreciate the evidence of the respective parties for assessing the correctness of the findings either of the Enquiry officer or of the Director (Transport) who passed the order of dismissal of the petitioner from service. It will be suffice to record here presently that though two witnesses were examined on behalf of the employer but the evidence of not a single witness of the employer was scanned by the Enquiry Officer to ascertain the evidential value of the evidence of those two witnesses of the employer. When the evidence was adduced by two witnesses of the employer to support the charges levelled against the petitioner, was it not the duty of the Enquiry Officer to scan the evidence of those witnesses of the employer along with other evidence on record of the charged employee before coming to the ultimate conclusion regarding the offences allegedly committed by the charged workman? The very same mistake was again committed by the Director (Transport) who also passed the impugned order of dismissal of the petitioner from his service without considering the evidence of those two witnesses of the employer. In fact, the Director (Transport) has also not spent a single line about the evidential value of the evidence of those two witnesses of the employer before coming to the ultimate conclusion about the commission of the offence by the charged workman. In my view, non-consideration of the material evidence on record vitiates the entire trial of the departmental proceeding and if any conclusion is drawn without considering the material and relevant evidence on the issue, then the conclusion which was so drawn by the said authority must be held to be perverse. Now, let me consider the effect of the perverse order.;